4.1 Legislative safeguards for the prevention of statelessness A particularly important step towards prevention is to close gaps in nationality policy that could leave an individual stateless.81 States must, for instance, find a way to balance their interest of perhaps preventing dual nationality or protecting national security with the avoidance of statelessness. For instance, rather than obliging a person to renounce their former nationality before applying for a new one, dual nationality can be avoided by allowing people to first acquire the new nationality then setting a deadline for the renunciation of the previous nationality. Cambodia and Indonesia provide firm guarantees against statelessness in the context of the renunciation of nationality, while some safeguards are also in place elsewhere in the region.82 Similar guarantees are needed to prevent statelessness from arising due to loss or deprivation of nationality.83 Given that migration is a significant phenomenon in the region, a particular area of concern is where nationality may be lost due to long-term absence from state territory.84 Cases of statelessness have arisen, for instance, among Indonesian émigrés under the previous nationality law that allowed citizenship to be lost after more than a 5-year absence. This was one of the key points of reform when the Indonesian nationality law was amended in 2006 and nationality can now no longer be lost in this way if it would result in statelessness.85 Transitional provisions also allowed those who had previously forfeited their citizenship to reacquire their nationality through simplified procedures, combining prevention with reduction of statelessness.86 Safeguards are also needed to ensure that everyone starts out life with a nationality. Here, “one of the surest methods [to prevent statelessness] is to guarantee that individuals born on a state’s territory have the right to that state’s nationality if they would not obtain any other”.87 This safeguard is laid down in the 1961 Convention on the Reduction of Statelessness and a number of human rights instruments. Today, 100 states have a clear international legal obligation to grant nationality to children born on their soil who would otherwise have none.88 Where children have been abandoned, their origin and parentage unknown, there is an even greater onus on the state to confer nationality so as to prevent statelessness.89 Examples of safeguards to ensure the child’s right to a nationality in the ASEAN region Malaysia: The following persons born on or after Malaysia Day are citizens by operation of the law […] every person born within the Federation who is not born a citizen of any country.90 81 UN General Assembly, Resolution: Office of the United Nations High Commissioner for Refugees, A/RES/50/152, 21 December 1995. 82 See article 18 of the Cambodian Law on Nationality, Decree No. NS/RKM/1096/31, 1996; article 23 of the Law on Citizenship of the Republic of Indonesia, Decree No. 12, 2006. Several other states offer safeguards that go at least some way to avoiding statelessness in this context, including Malaysia, Singapore, Thailand, Viet Nam and Myanmar. 83 Cambodia’s law is the only one in the region that does not prescribe the withdrawal of nationality under any circumstances. All others allow nationality to be lost or deprived if certain conditions have been met, which may lead to statelessness. Nationality acquired automatically at birth tends to enjoy greater protection against loss or deprivation than nationality acquired through naturalisation, registration or marriage. 84 Six countries currently provide in their law for the loss of nationality by all or some categories of citizen when they take up residence abroad: Brunei Darussalam, Lao PDR, Myanmar, the Philippines, Singapore and Thailand. Note that such loss of nationality is subject to various other conditions. 85 Article 23 (i) of the Law on Citizenship of the Republic of Indonesia, Decree No. 12, 2006. 86 Article 42 of the Law on Citizenship of the Republic of Indonesia, Decree No. 12, 2006. This policy is discussed in more detail in section 5 where efforts for the reduction of statelessness are studied. 87 Emphasis added. António Guterres (UN High Commissioner for Refugees) and Louise Arbour (UN High Commissioner for Human Rights, The hidden world of the stateless, November 2007. 88 UNHCR, UNHCR Action to Address Statelessness – A strategy note, March 2010. 89 This is explicitly provided for in the 1930 Hague Convention on Certain Questions Relating to Conflict of Nationality Laws, the 1961 Convention on the Reduction of Statelessness, the European Convention on Nationality and the Covenant on the Rights of the Child in Islam. It is also strongly evidenced in state practice. See, for instance, UNHCR, Final report concerning the questionnaire on statelessness pursuant to the Agenda for Protection, March 2004. 90 Section 1 (e), Part II of the Second Schedule of the Federal Constitution of Malaysia, 1957, as amended. Note that for the purposes of implementing this provision, a person is to be treated as having at birth any nationality that is acquired within one year afterwards by virtue of registration with a foreign embassy. Section 2 (3), Part II of the Second Schedule of the Federal Constitution of Malaysia, 1957, as amended. 13